*1
Omer Plaintiff and FARMERS HOME MUTUAL INSURANCE COMPANY, Appellant. Defendant and Ellett, J., opinion dissented and filed Henriod, concurred.
No. 12760. Supreme Court of Utah.
Aug. 14, 1972.
CROCKETT, Justice: judgment Plaintiff Morris recovered against Insurance Farmers Home Mutual basement Company for water in the found to his home which the trial court *2 under of defendant's be covered the terms policy. appeals, mak- insurance Defendant there is no (1) that the contentions: support the trial in the evidence to basis court’s contrary, by on the but finding from the reasonable (2) a be that it was from cause evidence affirmatively policy. excluded upon the trial court provision which The responsible defendant is: found the leakage discharge, Accidental or water from within overflow of or steam conditioning plumbing, heating air a or appli- system from a domestic or within ance .... : provision the defendant liability seeks to avoid is: n NOT IN- THIS POLICY DOES SURE AGAINST LOSS: 4* ^ by, from, resulting 3. caused contrib- by any aggravated uted to or fol- of Worsley, Clegg, of H. Snow & lowing James :
Christensen, City, Lake for defendant- Salt appellant. c. water of below the surface Morris, City,
George ground Lake for including C. Salt that which exerts plaintiff-respondent. pressure seeps or flows, or leaks sidewalks, driveways, founda- basis evidence the
through On walls, findings: tions, or floors or court made these basement other doors, other windows preponderance a The Court finds from sidewalks, driveways, opening in such the evidence that the water did not en- of foundations, floors; walls or ter the basement from outside broken pipe, nor seepage through from the walls dispute fact that There is no about the floor, or basement nor from outside 2, 1970, September on the afternoon of flooding, table, high nor from a water plain- from source flooded water some specified nor from other basement, damage to tiff’s nor that it did expressly policy which is excluded carpeting and other items to the extent coverage. $400, matter as awarded the court.1 The critical concern water came is where the preponderance The Court finds from home from. returned When entered the water he approximately that afternoon at 4:30 the basement due to accidental flooding, did not first discovered plumbing fixture located inspec- determine its source. Thereafter [Emphasis basement.2 by experts premises tions made were added.] separately by plaintiff retained and defend- *3 any They
ant.
did not discover
attack on
Defendant’s
those find
pipes, taps
ings
or other
of leak-
there to see
overt sources
is that because no one was
from,
age,
they
any likely
nor did
flooding
find
the
nor
source where
water came
any
particular
from below the
through
discovery
surface or
had made
side-
as to a
walks, foundations, etc.,
source,
listed in the
to
ex-
was insufficient
support
clusion
3(c)
quoted.
clause
the
it
hereinabove
It
that
came from “a
was
that
appeared
plumbing
found
there
be a
fixture within
to
the basement.”
“cold
(the
seam”
cement
had been set at
nature of the world
and
about us
the
different
times)
goings
between the
on therein
foundation
are such that we witness
floor,
wall and the
pos-
only
from which it
a
percentage
small
of it
direct ob
sible that there could
seepage
large
be
ground
portion
of
A
of our aware
servation.
water into the
knowledge
necessarily
basement.
ness and
is
derived
$800,
loquy
seeming
suggest
1. Actual
loss was
but due to
with
circum-
counsel
to
here,
stances not material
one half
that
the burden was on the defendant
to
of
paid by
the loss was
another
insurer.
that
from a
show
came
by paragraph 3(c)
policy,
excluded
of the
formally prepared
2. This
and written find-
Clothier,
see McCollum
Utah
preference
takes
over
oral ob-
prerogative fact the court as the trier. of fact, He is entitled to make his of apply just We what has been said only concerning
not on evidence direct ob- appears to the evidence. It that an im servations, but also to draw whatever infer- partial and might fair-minded fact trier person a ordinary ences intelligence well reason: that inasmuch as there had experience and fairly reasonably could previous flooding been no from under draw therefrom.3 ground, walls, foundations, etc., as excluded paragraph under 3(c) he did Proceeding upon premises not believe that the water just stated, we note our accord with certain himself, such source. He could then ask principles other applicable our considera get there, proceed how else could it tion of defendant’s attack the find only reason further: other source ings: that the has the burden of of water entering house, known to be proving that his loss comes within the cov house, or to be within erage policy; stated in the burden system within the pipes and fixtures is not met if the evidence inadequate is so plumbing; known as the is within or uncertain as to leave reasonable minds experience realm common parts in a conjecture, state of doubt but can house, plumbing in the which in be satisfied evidence which meets inlets, outlets, cludes the various fix universally recognized standard of drains, tures and at times fail function proof required to establish facts a civil properly, or properly operated to be or at case, is, by preponderance of the evi tended, may leakage, overflow, cause requires dence. This that the evidence be drain, or the failure to and thus result fairly acting such that reasonable minds therefrom, floor, water on conclude thereon could believe that the existence of did, logical the trial court that the most probable likely fact more or more source was from the "accidental nonexistence,4 person than its so that ordinary prudence plumbing could believe the from a fact fixture.”5 *4 Wigmore (3d analogous Ed.), involving reasoning 3. 1 on See Evidence 5.A is case 25; Jennings Harrison, Mo.App., Assn., v. Sec. Harrison v. Mutual Ins. Farmers 279, 298, S.W.2d 39. 260 see 417 Iowa 149 N.W.2d authorities therein cited. Evidence, 319; 4. Al- McCormick Sec. Tucker, 2 varado Utah 2d P.2d any CALLISTER, my impression TUCKETT, at times C.
It is J. judge may much inclined to what concur. us be too seems is reasonable on basis of what solely point of ELLETT, from our own (dissenting).
reasonable Justice view, not our and if it does coincide with I dissent. unreasonable, conclusion, deem to own In opening statement to the court latitude than allow reasonable rather to up counsel for Morris summed the mat- Mr. may minds as to what other reasonable correctly ter when he said: preroga- order to honor the conclude. In they [plaintiff . And . . and an em- trial court as the finder tive of the ployee went defendant] facts, that this court should it is essential speculating the basement and as where keep in objective possible, be as say speculating this water came from. I applied be is neces- mind that test to not advisingly [sic], because to date this sarily of the court whether members proof there is no definite as to this how conclusion, but reach same would water got in the basement. It is one of whether as made be would just those things odd could not defi- the ambit of what reasonable nitely . be established. . . find, might they if dif- minds even should fer from our own views. [******] given . As I have Your Honor considering presented by In the issue here, speculation evidence that is light defendant in the of what we have said go the word all directions wheth- upon the basis above, and of the traditional er it came from inside outside. prerog- trial rules which allow the court the ative not the facts shown trial could likewise not deter- evidence, drawing the direct also of mine got the water how into the house. deductions reasonable and inferences He stated: fairly reasonably that could be derived here, saying But I think I am what therefrom, require and which this court to Clegg, Mr. think is I that under the facts light the total record review favor- plain- circumstances here findings, persuaded we not able to his are tiff probably proof has met his burden of they are without a so reasonable basis showing damage oc- they in the evidence that should be over- your policy came curred after into ex- turned. istence. And that since water (respond- Costs house under certain circumstances Affirmed. ent). the policy, be it then
211 undoubtedly signing In drawn insurance com- burden of the becomes the by for the court said: damage counsel the pany resulted to show that the liability of from a source that excluded pre- finds from a . . The court . company damage, the insurance for the that the ponderance of I you done that. and I don’t think have to acci- entered the basement due water you know that could. don’t plumb- discharge from a dental of water the basement. one, fixture located within including clear that no It thus is damage the judge, the knew how occurred. support find- There is no evidence to misapplied when The then the law ing. obligated to he assumed that defendant was expert witness plaintiff called an The that the was show cause opinion for his as where and when asked by something those covered other than replied: water policy. : I afraid I would THE am WITNESS contrary. burden is to the The The law give speculate if an have to I were only plaintiff not to show upon the opinion. already I indicated have caus- damage, to show that was but also pressure situation could be from policy by agency cover- ed some joint coming up on a cold crack water in 21 Law The is stated Insurance ed. law through. could have come 12141 (Appleman) Practice in section quite to be: view page at never THE COURT: We gives he expert speculating when an action on an accident In an opinion if is based opinion; his beneficiary to show burden is on the facts, then I speculation not on is liable that the insurer evidence opinion. But in guess it is not a valid Likewise, has the policy. the insured its you your opinion, think that do injury showing that his burden up through the have come water could policy. terms of the But joints? pre- by a proven the facts need be where ponderance of the evidence. THE WITNESS: There is opinion my was. It was 2d the same effect Couch on Insurance To have to come from. where it would states the law be: its would be THE COURT: What proving insured has the burden The source, you do think? as comes loss was such that the sustained The THE coverage policy. WITNESS: [Sec. it could be be outside water or have to 79:344] inspected age pipe. I have was discovered. There is not one bit a broken situation, but I couldn’t of evidence of water in this homes hear the basement. couldn’t any broken —I hear find pipe and I couldn’t of a broke noise judgment I would reverse and award that barred pipe. So appellant. costs to the situation. expert wit- also called defendant HENRIOD, opinion .concurs *6 ELLETT, testified:
ness who J. upon your examination of
Q Based you knowing do about what
the home houses, you an did have
construction the water on whether
opinion as to had entered the house
inside of
the house?
outside
stoppage in the drain was also a toilet portion. There
shower stoppage or there no evidence of There was water
overflow therefrom. had basin
basin but no water in it. The outlet. overflow inside the base-
If the water open faucet from an
ment it had to come when the dam- closed
and all faucets were